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Committee on the Judiciary v. Harriet Miers (Amicus Brief)

The Brennan Center filed an amici brief asking the D.C. District Court to allow Congress to proceed with its efforts to enforce the subpoenas issued against Joshua Bolten and Harriet Miers in the executive privilege case related to the contentious 2006 firing of nine U.S. Attorneys

Published: August 1, 2008

In Brief – The Bren­nan Center for Justice filed an amici brief asking the D.C. District Court to allow Congress to proceed with its efforts to enforce the subpoenas issued against former White House Chief of Staff Joshua Bolten and former White House coun­sel Harriet Miers in the exec­ut­ive priv­ilege case, Commit­tee on the Judi­ciary, United States House of Repres­ent­at­ives v. Harriet Miers et al., related to the conten­tious 2006 firing of nine U.S. Attor­neys.

Ques­tion Presen­ted – Does the judi­cial branch have a role in determ­in­ing whether the Pres­id­ent can frus­trate Congress’s powers to obtain inform­a­tion neces­sary to restore public confid­ence in the justice system?  And, does the judi­ciary play a role in assess­ing the need for legis­la­tion to prevent recur­rence of White House wrong­do­ing?  

Proced­ural History The case was brought before the D.C. District Court against Miers and Bolten by the House Commit­tee on the Judi­ciary.  The Bren­nan Center and co-amici filed their brief on May 29, 2008, in oppos­i­tion of the defend­ants’ attempt to dismiss the case.  On July 31, 2008, the D.C. District ruled that former White House employ­ees must cooper­ate with the House Judi­ciary Commit­tee’s invest­ig­a­tion. 


In Detail – The case of Commit­tee on the Judi­ciary, United States House of Repres­ent­at­ives v. Harriet Miers et al. raises ques­tions about the extent of Congress’s powers to obtain the inform­a­tion neces­sary to assess the misuse of the federal crim­inal justice system.  Grave charges have been levied against the White House based on substan­tial evid­ence that the crim­inal justice system may have been perver­ted to influ­ence prosec­u­tions for partisan purposes.  The House Judi­ciary Commit­tee is invest­ig­at­ing what role White House offi­cials had in the firing of nine U.S. Attor­neys.  In carry­ing out its invest­ig­a­tion, the Commit­tee issued subpoenas to compel Harriet Miers and Joshua Bolten to cooper­ate with the invest­ig­a­tion.  Congress’s invest­ig­a­tion, however, has been thwarted by repeated White House refusal to nego­ti­ate access to testi­mony and to crit­ical inform­a­tion about the source of possible impro­pri­et­ies.

Thus, Congress’s decision to involve the District Court in resolv­ing this contro­versy by enfor­cing congres­sional subpoenas is partic­u­larly appro­pri­ate.  If Congress cannot test the legal­ity of the defend­ants’ exec­ut­ive priv­ilege claims in court—when it has already explored reas­on­able altern­at­ives—the Consti­tu­tion’s Separ­a­tion of Powers is in danger.  

The Bren­nan Center for Justice strongly opposed the motion that would have dismissed this contro­versy.  The Center found that prin­ciple, history, and bind­ing preced­ent confirmed the need for the Court to resolve the disagree­ment by grant­ing the use of congres­sional subpoenas.  On July 31, 2008, the D.C. District ruled that former White House employ­ees must cooper­ate with the House Judi­ciary Commit­tee’s invest­ig­a­tion.   


The Ruther­ford Insti­tute, Judi­cial Watch, and Citizens for Respons­ib­il­ity and Ethics in Wash­ing­ton were amici curiae on this brief with the Bren­nan Center.